1
EXHIBIT 4.3
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
March 14, 2000, is between Tenneco Automotive Inc. (formerly known as Tenneco
Inc.), a Delaware corporation (the "Company"), and First Chicago Trust Company
of New York (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of September 9, 1998 (the "Rights Agreement"); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent desire to amend the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of the Title of the Rights Agreement.
(a) The title set forth on the cover page of the Rights Agreement
is amended in its entirety as follows:
-------------------------------------
TENNECO AUTOMOTIVE INC.
(formerly known as TENNECO INC.)
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Rights Agent
-------------------------------------
RIGHTS AGREEMENT
Dated as of September 9, 1998, as amended
on Xxxxx 00, 0000
(x) The first paragraph on page 1 of the Rights Agreement is amended
to read in its entirety as follows:
RIGHTS AGREEMENT
Rights Agreement, dated as of September 9, 1998, as
amended on March 14, 2000 ("Agreement"), between Tenneco
Automotive Inc., a Delaware corporation, formerly known as
Tenneco Inc. (the "Company"), and First Chicago Trust Company
of New York, as Rights Agent (the "Rights Agent").
2
2. Amendment of Section 1(a).
Section 1(a) of the Rights Agreement is amended to read in its
entirety as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the shares of
Common Stock then outstanding, but shall not include an Exempt Person
(as such term is hereinafter defined); provided, however, that (i) if
the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person" became the
Beneficial Owner of a number of shares of Common Stock such that the
Person would otherwise qualify as an "Acquiring Person" inadvertently
(including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of Common Stock that would
otherwise cause such Person to be an "Acquiring Person" or (B) such
Person was aware of the extent of its Beneficial Ownership of Common
Stock but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement) and without any intention of
changing or influencing control of the Company, then such Person shall
not be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement unless and until such Person shall have
failed to divest itself, as soon as practicable (as determined, in good
faith, by the Board of Directors of the Company), of Beneficial
Ownership of a sufficient number of shares of Common Stock so that such
Person would no longer otherwise qualify as an "Acquiring Person"; (ii)
if, as of the date hereof or prior to the first public announcement of
the adoption of this Agreement, any Person is or becomes the Beneficial
Owner of 15% or more of the shares of Common Stock outstanding, such
Person shall not be deemed to be or to become an "Acquiring Person"
unless and until such time as such Person shall, after the first public
announcement of the adoption of this Agreement, become the Beneficial
Owner of additional shares of Common Stock (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding
Common Stock or pursuant to a split or subdivision of the outstanding
Common Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, such Person is not then the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding; (iii) no Person shall become an "Acquiring Person" as the
result of an acquisition of shares of Common Stock by the Company
which, by reducing the number of shares outstanding, increases the
proportionate number of shares of Common Stock
2
3
beneficially owned by such Person to 15% or more of the shares of
Common Stock then outstanding, provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding by reason of such share acquisitions by
the Company and shall thereafter become the Beneficial Owner of any
additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common
Stock or pursuant to a split or subdivision of the outstanding Common
Stock), then such Person shall be deemed to be an "Acquiring Person"
unless upon becoming the Beneficial Owner of such additional shares of
Common Stock such Person does not beneficially own 15% or more of the
shares of Common Stock then outstanding; and (iv) if, as of the date of
the adoption of Amendment No. 1 to this Agreement or prior to the first
public announcement thereof, any Person is or becomes the Beneficial
Owner of 15% or more, but in all events less than 20%, of the shares of
Common Stock outstanding, such Person shall not be deemed to be or to
become an "Acquiring Person" unless and until such time as such Person
shall, after the first public announcement of the adoption of Amendment
No. 1 to this Agreement, become the Beneficial Owner of additional
shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common
Stock or pursuant to a split or subdivision of the outstanding Common
Stock), unless, upon becoming the Beneficial Owner of such additional
shares of Common Stock, such Person is not then the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding. For all
purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as in effect on the date hereof.
3. Amendment of Section 1(t).
Section 1(t) of the Rights Agreement is amended to read in its
entirety as follows:
(t) Intentionally omitted.
3
4
4. Amendment of Section 3(a).
Section 3(a) of the Rights Agreement is amended to read in its
entirety as follows:
(a) Until the Close of Business on the earlier of (i)
the tenth day after the Stock Acquisition Date or (ii) the tenth
Business Day (or such later date as may be determined by action of the
Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person
(other than an Exempt Person) of, or of the first public announcement
of the intention of such Person (other than an Exempt Person) to
commence, a tender or exchange offer the consummation of which would
result in any Person (other than an Exempt Person) becoming the
Beneficial Owner of shares of Common Stock aggregating 15% or more of
the Common Stock then outstanding (the earlier of such dates being
herein referred to as the "Distribution Date", provided, however, that
if either of such dates occurs after the date of this Agreement and on
or prior to the Record Date, then the Distribution Date shall be the
Record Date), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Stock
registered in the names of the holders thereof and not by separate
Right Certificates, and (y) the Rights will be transferable only in
connection with the transfer of Common Stock. As soon as practicable
after the Distribution Date, the Company will prepare and execute, the
Rights Agent will countersign and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Stock as
of the close of business on the Distribution Date (other than any
Acquiring Person or any Associate or Affiliate of an Acquiring Person),
at the address of such holder shown on the records of the Company, a
Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right (subject to adjustment as
provided herein) for each share of Common Stock so held. As of the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
5. Amendment of Section 3(c).
The legend set forth in Section 3(c) of the Rights Agreement is amended
to read in its entirety as follows:
4
5
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Tenneco
Automotive Inc., formerly known as Tenneco Inc. (the "Company"), and
First Chicago Trust Company of New York, as Rights Agent, dated as of
September 9, 1998 and as amended from time to time (the "Rights
Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Company will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written request
therefor. Under certain circumstances, as set forth in the Rights
Agreement, Rights owned by or transferred to any Person who is or
becomes an Acquiring Person (as defined in the Rights Agreement) and
certain transferees thereof will become null and void and will no
longer be transferable.
6. Amendment of Section 7(b).
Section 7(b) of the Rights Agreement is amended to read in its
entirety as follows:
(b) The Purchase Price shall be initially $8.80 for each one
one-thousandth of a share of Preferred Stock purchasable upon
the exercise of a Right. The Purchase Price and the number of one
one-thousandths of a share of Preferred Stock or other securities or
property to be acquired upon exercise of a Right shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof
and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) of this Section 7.
7. Amendment of Section 13(f).
Section 13(f) of the Rights Agreement is amended to read in its
entirety as follows:
(f) Intentionally omitted.
8. Amendment of Section 26.
The notice provision in respect of the Company set forth in Section 26
of the Rights Agreement is amended to read in its entirety as follows:
Tenneco Automotive Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: General Counsel
5
6
9. Amendment of Section 30(a).
Section 30(a) of the Rights Agreement is amended to read in its
entirety as follows:
(a) The Board of Directors of the Company shall have
the exclusive power and authority to administer this
Agreement and to exercise the rights and powers specifically
granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the
administration of this Agreement, including, without
limitation, the right and power to (i) interpret the
provisions of this Agreement and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination
whether: to exchange the outstanding Rights for Common Stock
pursuant to Section 24; to redeem or not redeem the Rights;
or to amend or not to amend this Agreement). All such
actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions
with respect to the foregoing) that are done or made by the
Board of Directors of the Company in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights, as such, and all other
parties, and (y) not subject the Board of Directors to any
liability to the holders of the Rights.
10. Amendment of Section 30(b).
Section 30(b) of the Rights Agreement is amended to read in its
entirety as follows:
6
7
(b) Nothing contained in this Agreement shall be deemed to
be in derogation of the obligation of the Board of Directors of
the Company to exercise its fiduciary duty. Without limiting the
foregoing, nothing contained herein shall be construed to suggest
or imply that the Board of Directors shall not be entitled to
reject any tender offer or other acquisition proposal, or to
recommend that holders of Common Stock reject any tender offer or
other acquisition proposal, or to take any other action
(including, without limitation, the commencement, prosecution,
defense or settlement of any litigation and the submission of
additional or alternative offers or other proposals) with respect
to any tender offer or other acquisition proposal that the Board
of Directors believes is necessary or appropriate in the exercise
of such fiduciary duty.
7
8
11. Amendment of Form of Rights Certificate.
(a) The first paragraph of the form of rights certificate attached as
Exhibit B to the Rights Agreement is amended to read in its entirety as follows:
RIGHTS CERTIFICATE
TENNECO AUTOMOTIVE INC.
This certifies that ____________________________ or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of
September 9, 1998, as the same may be amended from time to time (the
"Rights Agreement"), between Tenneco Automotive Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New
York, as Rights Agent (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M., New York City
time, on September 9, 2008 at the office or agency of the Rights Agent
designated for such purpose, or of its successor as Rights Agent, one
one-thousandth of a fully paid non-assessable share of Series B Junior
Participating Preferred Stock, par value $.01 per share (the "Preferred
Stock"), of the Company at a purchase price of $8.80 per one
one-thousandth of a share of Preferred Stock (the "Purchase Price"),
upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed. The number of Rights evidenced
by this Rights Certificate (and the number of one one-thousandths of a
share of Preferred Stock which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of March 14, 2000, based on the Preferred Stock
as constituted at such date. As provided in the Rights Agreement, the
Purchase Price, the number of one one-thousandths of a share of
Preferred Stock (or other securities or property) which may be
purchased upon the exercise of the Rights and the number of Rights
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
8
9
(b) The signature block of the Company set forth on the form of rights
certificate attached as Exhibit B to the Rights Agreement is amended to read in
its entirety as follows:
TENNECO AUTOMOTIVE INC.
By:_______________________________________
Chairman, President and Chief Executive
Officer
(c) The addressee on the Form of Election to Purchase set forth as an
attachment to the form of rights certificate attached as Exhibit B to the Rights
Agreement is amended to read in its entirety as follows:
To TENNECO AUTOMOTIVE INC.:
12. Effectiveness.
This Amendment shall be deemed effective as of March 14, 2000. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
13. Miscellaneous.
This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
9
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
TENNECO AUTOMOTIVE INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
10
